The latest figures published by the Health and Safety Executive from 2018/19 show that Scotland has the highest rate of work-related fatal injuries in the UK with 1.07 cases per 100,000 workers. The rate of reported non-fatal accidents in Scotland per 100,000 employees was also higher in Scotland than in the UK overall in the same period. Additionally, Scotland has fewer workers in low-risk occupations than other parts of the UK. It is therefore not surprising that claims for accidents at work have made up the second highest number of personal injury claims initiated in the Scottish Civil Courts in recent years.
The legal background for this in itself is simple to explain: employers owe a duty of care to their employees. This means they have to take reasonable care to protect employees from suffering an injury. If an employer fails to discharge this duty, they will be liable for the loss that was caused, and employees can claim for compensation. If the claim is successful, the employer or in most cases their insurer will be liable. But what has to be shown for a successful accident at work claim? In short, a solicitor will have to prove that the employer breached a statutory duty or acted negligently and caused their client a loss. What this means in detail, will be outlined below.
Step 1: Gather evidence
A very important part of bringing a claim for an accident at work is to make sure the supporting evidence can be provided. This evidence includes the process of reporting an accident at work. According to UK Regulations, most employers are obliged to keep records of accidents for a minimum of three years, which can be a helpful source of evidence. Additionally, it is vital to keep your own records of the accident that occurred and the harm you have suffered. Therefore, photographs, medical records, reports and any witnesses should be gathered before starting a claim. An experienced solicitor will know how to get access to further evidence and what will be needed for a successful claim.
Step 2: What are employers’ duties?
The employer’s duties arise from different sources. Mostly, they can be found in the written law – the laws and regulations governing health and safety at work. The most important framework for this is the Health and Safety at Work etc Act 1974 which is applicable UK-wide. There are however also more specific regulations which contain specialised duties for employers whose employees work at heights, with lifting equipment or in construction for example. An experienced solicitor will be able to identify the exact source of an employer’s duty and therefore be aware of any special requirements or exceptions that come with it. Additionally, employers have a general duty to take reasonable care to avoid foreseeable injuries to their employees and between employees. This comes from the unwritten, common law which is developed by the courts and in this case referred to as the law of negligence. This remains applicable in cases that do not fall under any of the specific regulations.
In summary, an employer therefore has to take reasonable care for the safety of their employees. This can include:
- a safe system of work
- a safe place of work
- providing safe working equipment
- providing training and instruction
- protection from other employees
- occupiers’ liability arising from having control over dangerous premises
The most common accidents at work in the UK involve trips and falls (just under one-third), handling, carrying and lifting (around 20%) while the rest is made up of falling from heights, being struck by moving objects or acts of violence.
Step 3: Show that duties were breached
This step is a crucial aspect of the claim which can require a lot of expertise. After establishing what duty was owed by the employer, it also needs to be shown that the employer has breached his duties. What this means is that firstly, it needs to be established what standard it required of the employer when discharging their duty. What that particular standard is, will often be defined in the specific regulation. Generally, the standard will be determined objectively, by looking at what a reasonable employer would have done. However, the law is also clear that especially in professional settings the standard of a reasonable individual in that profession will determine the standard. This means professional knowledge can be considered to raise the standard that will be required of your employer.
Once this has been shown, the second step is to prove that the employer has fallen below that standard. This can be a difficult part of the claim and requires expert-knowledge of what processes the employer has put in place and what else they could have done to adhere to the standard required. The likelihood and seriousness of harm that could occur will be taken into account as well as the cost of preventing an injury and the utility of the employer’s conduct. Therefore, the standard in inherently dangerous working environments such as factories or warehouses will be different than that required in an office setting and conduct that constitutes a breach in one working environment, might not in the other.
Step 4: Strict liability or Causation
Generally, for any personal injury claim it is required that it can be proved that the loss or injury was caused by the person you are claiming against. For accidents at work this means that the harm would not have occurred but for the actions or inactions of the employer, the so-called ‘but-for test’. This can sometimes be a difficult exercise for a solicitor, for example if there are many people involved or there are no clear structures of decision-making in place. In some cases, the law acknowledges this and therefore the specific regulation might provide for strict liability to be applied. This means, as long as it is possible to prove that the employer had the specific duty and has fallen below that standard that is required of them (see steps 2 and 3), a solicitor will not have to show that the harm was caused by the employer. The employer will therefore be liable for any harm that occurred after breaching a duty contained in a regulation which provides for strict liability. If your claim however does not lie within a strict liability, in addition to the ‘but-for test’, your solicitor will also have to prove that the harm suffered is not too far removed from the events that caused it. An extreme example of this would be that due to your injury at work, you were not able to buy a lottery ticket that day and therefore did not win the jackpot. Your solicitor will have to show that the harm flowed directly form your employer’s actions or inactions or that it was at least foreseeable to occur. One very important aspect of this will be, whether your own behaviour contributed in any way to the injury you have suffered. This could mean that your claim might have to be reduced and it is therefore vital you let your solicitor know about your own conduct.
Step 5: Amount to claim for
Finally, once all the previous steps have been completed and have been successfully proven, you will be entitled to receive financial compensation from your employer. This might often be the first question you might have when approaching a lawyer. Generally, you will be compensated for the actual injury and the pain and suffering it has caused you. There are guidelines in place that can help your solicitor to give you an estimate of this. The more severe your injury is, the higher the compensation will be and injuries to your back, neck, arms, and legs will lead to higher compensation awards than those to a finger or foot. It will however depend on your individual case and as accidents at work can have their own unique circumstances, it is difficult to make an accurate estimate for this. Even more complex to predict, especially when your claim has just started, are the further losses you can claim for. They include loss of earnings, medical expenses, care costs or if your personal property was damaged by the accident. The reason why you might be able to claim for these expenses is, that you should not be left worse off due to the accident. These so-called ‘special damages’ therefore really depend on your individual situation and cannot be estimated by comparing your case to similar ones. It is therefore very important to keep track of any expenses related to the accident and consult your solicitor about what can be included in the claim to make the right decisions on how to spend your money. These special damages will be added to the award of compensation for the pain and suffering.
Accidents at work frequently occur in Scotland and can give rise to claims for compensation against the employer or their insurers. For a successful claim a solicitor will have to prove a range of things outlined above and will often depend on you as the claimant to reach the best possible result. Therefore, having an experienced solicitor that you are comfortable working with, is key for pursuing a personal injury claim.